Crim P&E Review Flashcards

Question

# GRAND JURIES How many jurors are required to issue an indictment?

Answer 1

At least 9 grand jurors must agree to indict (true bill).

Answer 2

Yes. If a grand jury issues a no-bill, there is no time limit for a prosecutor to seek a re-indictment.

Answer 3

During deliberations on indictment, only the members of the grand jury may participate.

Answer 4

The grand jury may ask advice from prosecutor about the law, and may ask question about the grand jury duties, but the prosecutor may not be present when the grand jury is deliberating.

Answer 5

In general, the **rules of evidence do not apply to grand jury proceedings**. The grand jury may hear hearsay evidence as well as evidence that was illegally obtained, but a witness is allowed to assert an evidentiary privilege.

Answer 6

An individual who has been **arrested for a felony** but not yet charged by an indictment is entitled to an **examining trial**.

Answer 7

At an **examining trial**, the accused has the following rights: 1. To be represented by **counsel** 2. To be **present** when witnesses are presented 3. **Confront** and cross-examine witnesses 4. **Subpoena** witnesses 5. Make an **unsworn statement** (in a signed writing) before any witnesses are examined and/or give testimony

Answer 8

An indigent D is entitled to have an attorney appointed in an adversarial judicial proceeding that may result in punishment by **confinement**.

Answer 9

A **surety bond** is a written understanding to secure D’s appearance in court entered into by the D and his sureties.

Answer 10

A **cash bond** is a written undertaking to secure the D’s appearance in court but the D, not a surety, makes a cash deposit with the court in the amount of the bond.

Answer 11

A **personal bond** is a written promise by D to appear in court to answer the criminal accusations that is secured only by D’s promise to pay the bond amount if he fails to appear.

Answer 12

**Recognizance** may be granted by a magistrate if D is (1) charged with a fine-only misdemeanor, and (2) has no convictions for felonies or misdemeanors punishable by jail time.

Answer 13

In determining the amount of bail, the court must consider: *(HON-DF)* 1. What amount is **high** enough to give reasonable assurances that D will appear 2. Requirement that bail cannot be used as an instrument of **oppression** 3. **Nature** and circumstances of the offense 4. **D’s** ability to make bail (proof may be taken) 5. **Future** safety of a victim and community

Answer 14

The court may consider many factors in determining whether D is indigent (i.e., income, assets, debts, expenses, and dependents). However, the court is **not permitted to consider whether D has posted, or is capable of posting bail, in determining indigence**, except to the extent that it reflects on the factors.

Answer 15

A **claim of excessive bail** is made through a **petition for writ of habeas corpus** claiming inability to make bail and arguing that X amount is enough to give reasonable assurance that D will appear.

Answer 16

When a criminal case is set for a pretrial hearing, any preliminary matters including a motion for continuance, not raised or filed by D **7 days before the hearing will be waived**.

Answer 17

Prior to accepting a _plea of guilty_ the court must admonish D of: 1. **Range of** **punishment** possible for the offense 2. Plea agreement is a recommendation by the prosecution, and the **court is not bound to accept it**. 3. **Deportation** is possible if D is not a U.S. citizen. 4. *If the court accepts or lowers the punishment agreed upon by the parties*, the **D must get permission** from the trial court *before appealing any matter* except for those raised by written motion prior to trial.

Answer 18

Any pretrial motions must be filed at least **7 days** before a pretrial hearing. The court cannot compel an attorney to present pretrial motions under a different timeline.

Answer 19

A **D may withdraw his guilty plea for a felony** any time before the court takes the plea or pronounces judgment on the plea.

Answer 20

**Work product** is something prepared by an attorney for his own use in connection with the case. The **prosecutor must disclose** a statement given by D because it is evidence that would negate the D’s guilt. If the prosecutor refuses, opposing counsel is permitted to request the document by filing a motion.

Answer 21

The **state may pursue an interlocutory appeal** filed within **20 days** of the trial court entering the order to be appealed. The prosecutor must certify to the trial court that the appeal is **not for purpose of delay and that the evidence, confession, or admission is of substantial importance**.

Answer 22

The **defense does NOT have to provide the state with a list of lay witnesses**. The court does not have discretion to order D to do so. The defense does have to disclose the names and addresses of any **expert witnesses** that will be used at trial. Disclosure of witnesses must be made no later than **20 days** before trial.

Answer 23

First steps that must be takin in criminal trial prior to presentation of evidence—**read indictment and D enters plea.**

Answer 24

D may make his **opening statement at the beginning of trial** or reserve his right to make opining statement **following the close of the state’s case-in-chief**.

Answer 25

When a properly **subpoenaed witness** in a criminal action **fails to appear**, the party is entitled to have a **writ of attachment** be issued against the witness. A witness who refuses to obey a subpoena is also subject to contempt or fine.

Answer 26

A trial of multiple Ds _must be severed_ if: 1. There is an **admissible conviction** against one D or 2. A joint trial **would be prejudicial** to any D.

Answer 27

The **motion to sever** must be made before trial, or if there is a pretrial hearing, by the pretrial hearing.

Answer 28

D should file a **motion to suppress** to keep the prosecutor from introducing illegally obtained evidence at trial or a **nontraditional motion in limine** asking the court to rule on admissibility of evidence at trial.

Answer 29

D is presumed competent to stand trial unless **proved incompetent by a preponderance of the evidence**. Either party, or the court, may suggest by motion that D is incompetent to stand trial.

Answer 30

Generally, **no leading on direct**, except if witness is associated with the other party.

Answer 31

The burden of proof in a criminal trial is **beyond a reasonable doubt.**

Answer 32

_Motion for continuance due to an absent witness_ must contain: 1. **Name and address of witness** 2. **Diligence** in attempting to secure the witness’s attendance 3. **Materiality** of the testimony 4. The motion is **not made for purpose of delay** 5. **Absence was not procured** by the defendant 6. **No reasonable expectation** that attendance can be obtained in time for trial

Answer 33

After receiving D’s timely request, the **prosecutor must produce for inspection**, electronic duplication, photographing, and copying: 1. Any **offense reports** 2. Any **designated** documents, papers, written or recorded statements of the D or W, including officers, and 3. Any **unprivileged** designated documents, objects, or other tangible things that **contain material evidence** and are **in the possession, custody, or control of the state**.

Answer 34

**Prosecutor cannot withhold information** that she does not think will be helpful. Unlike the Brady disclosure obligations, there is no requirement that the material be helpful to D.

Answer 35

_D can waive the right to a jury trial_ on the issue of guilt *but only if* D makes the waiver (CA-POW) (1) in **person**, (2) in **writing**, (3) in **open court**, and (4) with **consent and approval** of both the *court and prosecutor*.

Answer 36

Both the state and defense get _unlimited challenges for cause_ if the juror: 1. Not qualified to **vote** in the state and county 2. **Convicted** of *misdemeanor theft or any felony* 3. Under **indictment** or legal accusation for *misdemeanor theft or a felony* 4. **Insanity** 5. **Physical or mental defect** rendering juror unfit for service 6. **Witness** in the case 7. **Served on grand jury that issued** indictment 8. Serviced on **petit jury in a former trial of the same offense** 9. **Bias or prejudice** in favor or against defendant 10. **Already established a conclusion** on *guilt or innocence* 11. **Cannot read or write**

Answer 37

If there is **only 1 defendant** then each party gets the following **number of peremptory challenges**: * Death penalty case – 15 * Other felonies – 10 * Misdemeanors in district court – 5

Answer 38

If **1 or 2 alternate jurors** are to be chosen, the state and D each get 1 peremptory challenge. If **3 or 4 alternate jurors** are to be chosen, the state and D each get 2 peremptory challenges.

Answer 39

On request of either party to reshuffle jury, the judge must order the clerk to randomly shuffle the jurors’ names and place them on a new list. **Only one shuffle** is permitted and must be conducted **before voir dire**.

Answer 40

A **judge is disqualified** if he has an interest in the case, has been counsel for the state or accused in the very same case, or the accused or a party injured is connected to judge by consanguinity or affinity within the third degree. Judge is a victim if bought stock due to CEO’s fraudulent reporting.

Answer 41

The “Rule” means that the court, at the request of a party, or on its own motion, excludes witnesses from attending trial or discussing testimony with anyone except lawyers.

Answer 42

At request of a party, the court may order the exclusion of a witness who is a close relative of a deceased victim or guardian of a victim, but only if the court determines that their testimony would be **materially affected from hearing others testify at trial**. May exclude **victim** if witness and testimony will be **materially affected**.

Answer 43

When the **charge is given to the jury by the judge**, the judge may not express any opinions as to the weight of the evidence, sum up the testimony, discuss facts, or use any argument calculated to arouse the jury’s sympathy or passion. Charge is given **before** closing argument.

Answer 44

A party can ask the judge to poll the jury, which requires the judge to address each juror separately and ask if the verdict is the juror’s own.

Answer 45

In a felony case, 12 jurors must be impaneled and all must agree on the verdict.

Answer 46

Generally, the judge determines the sentence, but D may elect to have punishment assessed by a jury in a noncapital case by making a **motion for jury sentencing before voir dire of the jury panel**.

Answer 47

At sentencing, evidence of prior bad acts can only be admitted if shown beyond a **reasonable doubt** that it was committed by D or that D **could be held criminally responsible for it**, *regardless of whether* D has previously been charged with or finally convicted of the bad act.

Answer 48

Evidence is complete when both sides have rested. To preserve a sufficiency of evidence challenge for appeal, a party must move for **directed verdict** on *basis that evidence is insufficient*.

Answer 49

A **motion for new trial** must be filed no later than **30 days** after the date the trial court imposes or suspends a sentence in open court.

Answer 50

To grant a motion for new trial based on the **verdict, the verdict must be contrary to the law and evidence**.

Answer 51

No. The trial court may only grant a motion for new trial on D’s motion, not on its own accord.

Answer 52

No. D who has been **acquitted cannot bring an ineffective assistance of counsel** claim because D cannot show that the result would have been different.

Answer 53

No. Act of meeting with or retaining attorney is NOT evidence of guilt.

Answer 54

No. Neither a withdrawn plea, nor a statement made in a plea negotiation, is admissible against D in a subsequent proceeding.

Answer 55

After a non-defendant witness testifies on direct examination, the **party not calling the witness can move to demand any statement of the witness in the possession of the other party**. If prosecutor refuses to deliver the report, the judge will either strike the testimony or declare a mistrial. E.g., defense may move for production of a testifying officer’s report who executed the search warrant after he testifies on direct examination.

Answer 56

D’s wrongful acts are not admissible to show his criminal propensity. Attorney should object because prior bad acts are irrelevant, that they are not MIMIC evidence, and/or that the **probative value of the evidence is substantially outweighed by danger of undue prejudice**.

Answer 57

In criminal cases, **the judge must permit D to voir dire the prosecution’s experts**. Also, voir dire of an expert witness **must be conducted outside the jury’s presence**.

Answer 58

Oral statements to police must be recorded to be admissible.

Answer 59

A **spouse may be called as a witness** for the state in a criminal case when the case involves a crime against D’s spouse, a member of the household of either spouse, any minor, or bigamy.

Answer 60

The **state may NOT call D as a witness**. If they try to, in order to preserve error, defense counsel should **object**, make a **motion for jury to disregard** the prosecutor’s comment, and **move for a mistrial** on the ground that the curative instruction was insufficient to ensure a fair trial.

Answer 61

D can be convicted on the **testimony of an accomplice** only when the accomplice’s testimony is **corroborated**.

Answer 62

No. In Texas criminal cases, there is no physician-patient privilege.

Answer 63

A **witness (including defendant) may be impeached** by evidence of a **prior felony** or **any crime involving moral turpitude**, as long as the probative value of the evidence outweighs its prejudicial effect.

Answer 64

At least **14 days** before trial, the **proponent of a business record** must serve a copy of the record and the custodian’s affidavit on the opposing party in order to admit such evidence as **self-authenticating**.

Answer 65

**After the sentence** has been pronounced, a victim, guardian of the victim, or a close relative of a deceased victim has the right to appear in person and present to the court and the D a **victim impact statement** their views on the offense, the defendant, and the effect it has had on them.

Answer 66

No. Convictions on appeal are NOT admissible.

Answer 67

_Deferred adjudication_ is the **judicial deferral** of further proceedings **without adjudication of guilt** and **placing D on community supervision**.

Answer 68

A judge may grant deferred adjudication after receiving a guilty or no contest plea, hearing evidence, and finding that it substantiates the D’s guilt, if the judge believes that the best interest of justice, society, and D will be served.

Answer 69

_Probation_ is **suspending D’s sentence** *or* **fine after conviction** *or* **acceptance of a guilty or no contest plea** *and* **D is placed on community supervision**.

Answer 70

In order to allow the **jury to recommend probation**, before trial, D must **file a sworn motion** with the judge stating that D has never been convicted of a felony.